https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12114

Ola Energy Kenya Ltd v Times Touch Enterprises Ltd (Civil Appeal E178 of 2024) [2026] KEHC 12114 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KEHC 12114 (KLR) Republic of Kenya In the High Court at Mombasa Civil Appeal E178 of 2024 J Ngaah, J July 31, 2026 Between Ola Energy Kenya Limited Appellant and Times Touch Enterprises limited Respondent (Being an appeal from the ruling of Hon. Gathogo Sogomo, Principal Magistrate, delivered on 28th March 2024 in Mombasa Chief Magistrate’s Court Civil Case No. E911 of 2023) Judgment Introduction and background 1.The appellant, Ola Energy Kenya Limited, was the defendant in Mombasa Chief Magistrate’s Court Civil Case No. E911 of 2023 in which the respondent, Times Touch Enterprises Limited, was the plaintiff. By a plaint dated 7 August 2023, the respondent sued the appellant, which it described in the plaint as “Ola Energy Kenya Ltd (formerly Libya Kenya Limited)” and elsewhere on the record as “Ola Gas Energy Limited”. The respondent’s claim arose from a “CODO” (Company Owned Dealer Operated) service station agreement under which the respondent operated the Oilibya Nyali Service Station erected on Land Reference No. MN/1/7665 within Mombasa County as a dealer of the appellant’s petroleum products. The respondent sought, in the main, a declaration that the appellant was in breach of the agreement, general damages for breach of contract, and liquidated and special damages in the sum of Kshs 10,130,108 together with interest and costs. 2.The plaint was filed under a certificate of urgency contemporaneously with a notice of motion of even date by which the respondent sought interlocutory orders of injunction restraining the appellant from, among other things, calling up a bank guarantee which the respondent had procured from KCB Bank Kenya Limited as security for its indebtedness to the appellant. This appeal, however, is not concerned with the merits of the respondent’s claim. It is directed at the ruling of Hon. Gathogo Sogomo, Principal Magistrate, delivered on 28 March 2024, by which the learned magistrate dismissed the appellant’s notice of preliminary objection dated 19 January 2024. 3.The notice of preliminary objection, expressed to be brought pursuant to section 19 of the Civil Procedure Act and Order 5 rule 1 of the Civil Procedure Rules, 2010, was in the following terms:“TAKE NOTICE that at the first instance, the Defendant herein shall raise a Preliminary Objection on a point of law on the ground that entire suit based on the Plaint dated 7th August, 2023 is incompetent, and nullity ab initio and the proceedings initiated thereby are an abuse of Court process as the Plaintiff has failed and/or ignored to ‘extract and serve Summons to enter appearance’ upon the said Defendant as is required by the ‘mandatory’ provisions of the law in regard to institution of suits before the Honorable Court and as such, the Plaint and the Proceedings ought to be struck out with Costs to the Defendant, assessed on the value of the subject matter.” 4.The chronology that gave rise to the objection is apparent from the record of the trial court and is, in all material respects, not in dispute. The suit was filed on 7 August 2023 accompanied by a draft summons to enter appearance prepared by the respondent’s advocates; the draft appears at page 4 of the record of appeal, unsigned and unsealed. What the respondent thereafter served upon the appellant was not summons but the pleadings and the urgency application: according to the material on the trial court’s record, the plaint, the motion and a court order of 8 August 2023 were transmitted to two employees of the appellant described as a branch manager and a regional manager. In response, the appellant’s advocates filed a notice of appointment of advocates dated 8 September 2023. No memorandum of appearance was ever filed. 5.On 11 October 2023, the trial court was moved for interlocutory judgment on the strength of that purported service. The record contains an unsigned entry of that date reading, “The defendant herein having been duly served, and having failed to enter appearance within the stipulated period of time and upon the application of the plaintiff advocates, I enter interlocutory judgment as prayed”, followed by the annotation “not signed by the duty court”. Instead, Hon. Akee, Senior Resident Magistrate, before whom the matter was placed that day, directed that “service be effected to the Company”. Summons to enter appearance were issued — that is, signed and sealed — the following day, on 12 October 2023. That date is common ground: the learned trial magistrate found it from the record, and the respondent’s own submissions before this court assert that the summons “were duly signed and sealed by the Court Administrator on 12th October 2023”. 6.What is equally common ground is what happened, or rather did not happen, thereafter. There is no affidavit of service of summons anywhere on the record. The respondent has at no point — whether in its submissions opposing the objection before the trial court, or in its submissions on this appeal — asserted that the summons were ever collected for service or served upon the appellant. Its position before this court is candid: that “before service of summons could be effected, the Appellant rushed to court and filed a Preliminary Objection”. The objection was filed on 19 January 2024, some ninety-nine days after the summons issued. The impugned ruling 7.In a brief ruling delivered on 28 March 2024, the learned magistrate correctly identified the governing principles, citing Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd (1969) EA 696 and the decision of the Supreme Court in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR. Turning to the merits, he reasoned as follows:“From the record the summonses alluded to were issued on 12th October, 2023. Assuming the instruments have not been taken out and served as complained by the Applicants, Order 5 rule 2(1) of the Civil Procedure Rules provides as follows: ‘A summons (other than concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue…’The upshot of the foregoing is to mean that the Respondents have a window period of up to 12th October, 2024 to collect and serve the impugned summonses. Even after this duration the Applicants cannot be heard on their objection since Order 5 rule 2(2) of the Civil Procedure Rules provides for extension of the said summons.Secondly, service of summons or lack thereof is an argumentative question of fact that require affidavit evidence or other deposition a far cry of the crisp point of law based on uncontested facts contemplated in the Mukisa Bisquit and Cheperenger cases supra.” 8.On that reasoning, the learned magistrate held that “the Defendants/Applicants’ Preliminary Objection dated 19th January, 2024 fails and for avoidance of doubt the same is dismissed” with costs. The appeal 9.Aggrieved, and with the leave of the trial court granted on 24 April 2024, the appellant preferred this appeal by a memorandum of appeal dated 24 June 2024 raising three grounds: first, that the learned magistrate erred in law and fact in failing to take into account that the respondent’s failure to extract summons to enter appearance within thirty days of lodging the plaint, and to serve the summons upon the appellant as a corporation in the manner the law requires, rendered the suit a nullity, incompetent and an abuse of the court process; secondly, that he erred in failing to take into account the clear and apparent facts arising from a cursory review of the pleadings and the court record, and thereby misapplied the test in Mukisa Biscuit; and thirdly, that he erred in failing to consider the appellant’s submissions dated 16 February 2024 or to distinguish the authoritative precedents cited therein, which bound him as a subordinate court. The appellant prays that the appeal be allowed, the ruling set aside, and an order substituted striking out the plaint dated 7 August 2023 with costs. 10.The appeal was canvassed by way of written submissions. The appellant’s submissions are dated 3 November 2025; the respondent’s are dated 31 October 2025. The appellant submits that the mandatory scheme of section 19 of the Civil Procedure Act and Order 5 rule 1(1), (5) and (6) of the Civil Procedure Rules was flouted; that the facts underpinning the objection required no ascertainment because they appeared from the trial court’s own record and were confirmed by the magistrate’s own finding that summons issued on 12 October 2023; and that the decisions of this court in Tana Trading Limited v National Cereals & Produce Board [2014] eKLR and Ernest Ngugi Karuga & Another v James Mbugua Macharia & Another [2021] eKLR, which were placed before the trial court, were binding upon it and were neither followed nor distinguished. On the binding character of precedent the appellant also cited Super Metro Sacco Limited v National Transport Safety Authority & 2 Others [2025] KEHC 3553 (KLR). 11.The respondent supports the ruling. It submits that summons were duly signed and sealed on 12 October 2023 and that the appellant “rushed to court” before service could be effected; that Order 5 rule 1 does not prescribe that failure to serve within thirty days renders a suit a nullity; that a summons once issued is valid for twelve months and may be extended; that the overriding objective in sections 1A and 1B of the Civil Procedure Act, the inherent power preserved by section 3A, and Article 159(2)(d) of the Constitution all militate against the striking out of the suit on a procedural technicality; that the objection hinged on disputed facts and therefore failed the tests in Mukisa Biscuit and Oraro v Mbaja [2005] eKLR; that the authorities the appellant cited were merely persuasive and were in any event considered and distinguished by the trial magistrate; and that striking out is a draconian remedy of last resort, citing D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina & Another [1980] eKLR and Co-operative Merchant Bank Ltd v George Fredrick Wekesa [1997] eKLR, among others.The duty of the first appellate court and the issues for determination 12.This being a first appeal, this court is under a duty to reconsider and re-evaluate the material that was before the trial court and to reach its own independent conclusions, bearing in mind that it neither saw nor heard the witnesses; see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. The duty is, if anything, lighter in this instance: no oral evidence was taken, and the appeal turns on the construction of rules of procedure applied to facts appearing from the record. This court is therefore in as good a position as the trial court to determine the questions raised. 13.From the grounds of appeal and the rival submissions, three issues fall for determination: first, whether the appellant’s preliminary objection raised a pure point of law capable of determination as such; secondly, if it did, whether the objection ought to have been sustained — which turns on the true construction and effect of Order 5 rules 1 and 2 of the Civil Procedure Rules; and thirdly, whether the learned magistrate erred in his treatment of the authorities cited before him. The question of the appropriate orders, including as to costs, follows. Whether the preliminary objection raised a pure point of law 14.The starting point is the locus classicus, Mukisa Biscuit Manufacturing Company Ltd v West End Distributors Ltd (1969) EA 696, where Law JA stated that a preliminary objection:“…consists of a point of law which has been pleaded, or which arises by clear implication out of the pleadings, and which if argued as a preliminary point may dispose of the suit. Examples are an objection to the jurisdiction of the court, or a plea of limitation…” 15.Sir Charles Newbold P added, in the same case:“A preliminary objection is in the nature of what used to be a demurrer. It raises a pure point of law which is argued on the assumption that all the facts pleaded by the other side are correct. It cannot be raised if any fact has to be ascertained or if what is sought is the exercise of judicial discretion.” 16.The Supreme Court restated the principle in Independent Electoral and Boundaries Commission v Jane Cheperenger & 2 Others [2015] eKLR: a preliminary objection “should be founded upon a settled and crisp point of law, to the intent that its application to undisputed facts leads to but one conclusion: that the facts are incompatible with that point of law”. And in Oraro v Mbaja [2005] eKLR, on which the respondent leans, Ojwang J (as he then was) cautioned that an assertion which “bears factual aspects calling for proof, or seeks to adduce evidence for its authentication, is not, as a matter of legal principle, a true preliminary objection”. 17.I have no quarrel with these principles; the learned magistrate cited them correctly. The question is whether he applied them correctly. In my judgment, he did not. The objection before him rested on three facts, none of which required ascertainment through evidence because each appeared from the court’s own record or was common ground between the parties: first, that the suit was filed on 7 August 2023; secondly, that summons issued on 12 October 2023 — a fact the learned magistrate himself extracted from the record and announced in the ruling; and thirdly, that the summons had never been collected for service or served; a fact the respondent never contested, there being no affidavit of service of summons on record and no assertion by the respondent, in either court, that collection or service had occurred. A fact is not “disputed” merely because it is capable in the abstract of being disputed; it must actually be contested. Where the party upon whom the obligation lay does not claim to have discharged it, there is nothing left to ascertain. 18.There is a further difficulty with the learned magistrate’s reasoning which, with respect, is fatal to it. He determined the merits of the objection on the express assumption that “the instruments have not been taken out and served as complained by the Applicants”. That is precisely the demurrer posture that Sir Charles Newbold P described: the objection is argued on the assumption that the facts asserted are correct, and the court pronounces on the legal consequence. Having adopted that posture and answered the legal question against the appellant on the strength of Order 5 rule 2, it was not open to the learned magistrate to dismiss the objection, in the same breath, on the ground that service of summons was “an argumentative question of fact that require affidavit evidence”. The two positions cannot stand together. Either the facts required evidence, in which case the court could not have resolved the substantive question at all; or they did not, in which case the objection was properly before the court and fell to be determined according to law. 19.I would add this. An objection that a suit is incompetent, or has ceased to exist by operation of law, stands on a special footing. As Nyarangi JA memorably put it in Owners of the Motor Vessel “Lillian S” v Caltex Oil (Kenya) Ltd [1989] KLR 1, “jurisdiction is everything. Without it, a court has no power to make one more step”. Where it is apparent on the face of the record that the suit before a court has abated by force of the rules, the court cannot press on with it merely because the point was drawn to its attention in a vehicle said to be imperfect. The first issue is accordingly answered in the appellant’s favour: the objection raised a pure point of law arising from undisputed facts on the record, and it was capable of disposing of the suit. Whether the preliminary objection ought to have been sustained 20.The second issue is whether, on those undisputed facts, the objection was well founded. That turns on the statutory scheme. Section 19 of the Civil Procedure Act provides that “every suit shall be instituted in such manner as may be prescribed by rules”. The rules so prescribed include Order 5 of the Civil Procedure Rules, 2010. Rule 1(1) provides that when a suit has been filed, summons shall issue to the defendant ordering him to appear within the time specified therein. Rule 1(2) requires the summons to be signed by the judge or such officer as the judge appoints, and sealed with the seal of the court, within thirty days of the date of filing of the suit. Rule 1(5) provides:“Every summons shall be prepared by the plaintiff or his advocate, and shall be filed with the plaint to be signed in accordance with sub rule (2) of this rule.” 21.Rule 1(6) then provides, in terms whose importance to this appeal cannot be overstated:“Every summons, except where the court is to effect service, shall be collected for service within thirty days of issue, failing which the suit shall abate.” 22.Rule 2(1), on which the impugned ruling turned, provides that a summons (other than a concurrent summons) shall be valid in the first instance for twelve months beginning with the date of its issue; and rule 2(2) empowers the court, on application, to extend the validity of a summons from time to time if satisfied that it is just to do so. Finally, where the defendant is a corporation, Order 5 rule 3 requires service of the summons to be effected on “the secretary, director or other principal officer of the corporation”, or in the alternative modes there set out where none of those officers can be found. 23.Read together, these provisions disclose a coherent scheme in which the obligations of the plaintiff and of the court are distinct. The preparation of the summons and its filing together with the plaint is the plaintiff’s obligation under rule 1(5). The signing and sealing of the summons within thirty days of filing is the court’s obligation under rule 1(2). Collection of the issued summons for service within thirty days of issue is again the plaintiff’s obligation, under rule 1(6), and it is that obligation alone to which the rules attach the drastic consequence that “the suit shall abate”. Rule 2 then addresses a different subject altogether: the lifespan, or currency, of a summons that is in circulation for service — twelve months in the first instance, extendable on application. 24.Applying that scheme to the undisputed facts: the respondent complied with rule 1(5), for a draft summons was prepared and filed with the plaint on 7 August 2023. The summons was not, however, signed and sealed until 12 October 2023, some sixty-six days later and outside the thirty days contemplated by rule 1(2). Nothing turns on that delay as against the respondent: the obligation under rule 1(2) rests upon the court, and a litigant cannot be made to suffer for the court’s own default. But precisely because the thirty-day period under rule 1(6) runs from the date of issue and not the date of filing, the respondent was not prejudiced by the late issuance either. Its clock began to run on 12 October 2023, when the summons issued, and expired thirty days later, on or about 11 November 2023. Within that window the respondent took no step. It had taken none by 19 January 2024 when the objection was filed; none by 28 March 2024 when the ruling was delivered; and, on the material before this court, none since. The consequence decreed by rule 1(6) is expressed without qualification: the suit abated. 25.The learned magistrate escaped that conclusion by resort to rule 2(1), reasoning that because a summons is valid for twelve months from issue, the respondent enjoyed “a window period of up to 12th October, 2024 to collect and serve the impugned summonses”. With great respect to the learned magistrate, that reasoning conflates two distinct things: the period within which an issued summons must be collected for service, and the period during which a summons, once in circulation, remains alive for the purpose of service. Rule 2(1) presupposes a summons that has been taken out and is being served; it prescribes for how long the instrument remains current. It does not, and cannot, enlarge the thirty-day period for collection prescribed by rule 1(6). To read rule 2(1) as conferring a twelve-month period “to collect and serve” is to render rule 1(6), and the sanction of abatement that it carries, entirely otiose — for no suit could ever abate for want of collection within thirty days if the plaintiff always had a year. It is an elementary canon of construction that provisions of a statute, and equally of subsidiary legislation, must be read as a whole and harmoniously, each provision being given effect; a construction that reduces one provision to surplusage must yield to one that preserves both. Harmony is achieved here, without any strain, by recognising that rule 1(6) governs collection and rule 2 governs the validity of what has been collected. 26.Nor was rule 2(2) any answer. The power to extend the validity of a summons is exercisable on application, and no application for extension was ever made. In any event, what stood in the respondent’s way by the time the objection was argued was not the expiry of its summons but the abatement of its suit. Abatement under rule 1(6) operates by force of the rule itself upon the lapse of the thirty days; it requires no order of the court to take effect, although a party may, as the appellant did, invite the court to give formal recognition to that state of affairs. Once the suit abated in November 2023 there was, in the eyes of the law, no suit pending before the learned magistrate on 28 March 2024 upon which his ruling could operate. 27.This construction is not novel. It is the construction this court has consistently placed on the provision. In Tana Trading Limited v National Cereals & Produce Board [2014] eKLR, which was cited to the trial court, Havelock J confronted a plaintiff who had embarked on extracting summons almost three years after filing suit, and held:“The failure to serve process cannot be wished away as a mere technicality. Failure to serve process where process is required is a failure which goes to the root of the conceptions of proper procedure in litigation… Given the mandatory terms in which Order 5 Rule 1(5) is couched, I do not think the Court has discretion on this. The failure to observe rules of procedure as set out in Order 5 Rule 1(5) is in my view fatal. The suit never commenced. It remained still born.” 28.To like effect is Ernest Ngugi Karuga & Another v James Mbugua Macharia & Another [2021] eKLR, also cited to the trial court, in which Mabeya J adopted the statement in Mary Wariara Mbugua v Chase Bank Kenya Ltd [2018] eKLR that:“It is therefore a mandatory requirement that summons be served in the manner stipulated above and failure to serve the suit abates. However, this presumes that the defendant has not entered appearance and/or participated in the proceedings…” 29.The qualification captured in that passage — that abatement presumes the defendant has not entered appearance or participated in the proceedings — is the one avenue by which the respondent might have escaped the operation of rule 1(6), and it is therefore necessary to consider whether it avails the respondent here. It does not. The appellant never entered appearance. The notice of appointment of advocates dated 8 September 2023 is not, and has never been, a memorandum of appearance within the meaning of Order 6 rule 1 of the Civil Procedure Rules; it does no more than notify the court and the opposite party of the identity of counsel acting. Nor can the filing of the preliminary objection itself be treated as participation amounting to submission or waiver: a party who comes before a court for the sole purpose of protesting the competence of the proceedings against it does not thereby submit to those proceedings. Beyond the notice of appointment and the objection, the appellant took no step in the suit. The exception therefore has no purchase on these facts; on the contrary, the authorities the appellant placed before the trial court applied to them with full force. 30.It bears noting, moreover, that even the “service” that the respondent did effect at the inception of the suit, the transmission of the pleadings and the urgency application to a branch manager and a regional manager of the appellant, was neither service of summons nor service upon “the secretary, director or other principal officer of the corporation” as Order 5 rule 3(a) requires. The trial court itself recognised as much: when moved for interlocutory judgment on 11 October 2023 on the strength of that purported service, Hon. Akee, SRM declined to perfect the entry and instead directed that service be effected on the company. The summons issued the following day, and there matters rested. 31.The respondent’s remaining answers can be shortly disposed of. The invocation of the overriding objective in sections 1A and 1B of the Civil Procedure Act, the inherent power preserved by section 3A, and Article 159(2)(d) of the Constitution proceeds on the premise that the extraction and service of summons is a “procedural technicality”. It is not. Service of process is the mechanism by which a defendant is brought under the authority of the court; it is the condition upon which the court assumes power over him, and it is what gives practical content to the constitutional guarantee of a fair hearing. That is why Havelock J described its absence as a failure going “to the root of the conceptions of proper procedure in litigation”. The Supreme Court made the corresponding point in Nicholas Kiptoo Arap Korir Salat v Independent Electoral and Boundaries Commission & 7 Others [2014] eKLR — a decision the respondent itself cites — when it cautioned that Article 159(2)(d) of the Constitution is not a panacea for all procedural shortfalls, and that rules of procedure, being the handmaidens of justice, are to be complied with and not casually disregarded. A plaintiff who files suit under certificate of urgency, obtains interim orders, and then folds its arms for months on end without so much as collecting the summons that would bring the defendant properly before the court cannot be heard to plead substantive justice against the very rule designed to prevent that state of affairs. 32.Nor do D.T. Dobie & Company (Kenya) Ltd v Joseph Mbaria Muchina and Co-operative Merchant Bank Ltd v George Fredrick Wekesa assist the respondent. Those authorities caution against the summary striking out of pleadings that disclose a reasonable, even if weak, cause of action, because such an order drives a party from the seat of judgment without a hearing on the merits. Abatement under Order 5 rule 1(6) is different in kind. It is not a discretionary sanction which the court weighs against the strength of the claim; it is a consequence decreed by the rule itself upon the happening of a defined default, and — significantly — it determines nothing on the merits. Nothing in the abatement of CMCC No. E911 of 2023 forecloses the respondent from instituting a fresh suit on the same cause of action, subject only to the law of limitation. The draconian-remedy jurisprudence is, for that reason, beside the point. 33.The second issue is accordingly also answered in the appellant’s favour. On the undisputed facts, the suit abated by operation of Order 5 rule 1(6) upon the expiry of thirty days from 12 October 2023, and the preliminary objection ought to have been upheld. Whether the trial court erred in its treatment of the authorities cited 34.Little more need be said on the third issue. The respondent’s submission that the decisions in Tana Trading and Ernest Ngugi Karuga were “merely persuasive” to the trial court is, with respect, an erroneous statement of the doctrine of precedent. Both are decisions of this court construing the very provisions the trial court was called upon to apply, and by the principle of stare decisis they bound the subordinate court; as Aburili J observed in Super Metro Sacco Limited v National Transport Safety Authority & 2 Others [2025] KEHC 3553 (KLR), a court derives its jurisdiction from, among other sources, judicial precedents which are binding on it as pronounced by superior courts. The respondent’s further contention that the learned magistrate “considered and distinguished” those authorities is not borne out by the record: the ruling, which runs to three pages, makes no reference to either decision. A court is not obliged to adopt every authority pressed upon it; but where a subordinate court is referred to decisions of the High Court directly in point, it must either follow them or demonstrate by reasoned analysis that they are distinguishable. To pass over them in silence was an error of law, although, in view of my conclusions on the first two issues, this ground adds nothing to the result. Disposition 35.The upshot is that the appeal succeeds. Accordingly, I make the following orders:(a)The appeal is allowed.(b)The ruling of Hon. Gathogo Sogomo, Principal Magistrate, delivered on 28 March 2024 in Mombasa CMCC No. E911 of 2023 dismissing the appellant’s notice of preliminary objection dated 19 January 2024 is set aside and is substituted with an order allowing the said preliminary objection.(c)Mombasa CMCC No. E911 of 2023 is declared to have abated, by operation of Order 5 rule 1(6) of the Civil Procedure Rules, upon the expiry of thirty days from 12 October 2023, and the plaint dated 7 August 2023, together with all proceedings founded upon it, is struck out.(d)The costs of this appeal, and of the proceedings before the trial court, are awarded to the appellant. 36.It is so ordered. SIGNED, DATED AND DELIVERED ON 31 JULY 2026NGAAH JAIRUSJUDGE